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37 Cards in this Set
- Front
- Back
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Laundry List
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27 acts and practices that are deemed to be false, deceptive, or misleading. To establish a violation of the laundry list, the consumer must show that there was either an actionable misrepresentation or failure to disclose and that she relied on it to her detriment
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implied warranty of good and workmanlike manner
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quality of work performed by one who has t he knowledge, training, or experience necessary for the successful practice of a trade or occupation and performed in a manner generally considered proficient by those capable of judging such work
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Unconscionability
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an act or practice which, to a consumer's detriment, takes advantage of the consumer's lack of knowledge, ability, experience, or capacity to a grossly unfair degree.
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economic damages
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compensatory damages for pecuniary loss
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Can a consumer recover damages for mental anguish under the DTPA?
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Yes, if she establishes that the wrongful conduct was made knowingly. Knowingly means awareness that the conduct was false, misleading, unfair or a breach of warranty.
(and can get additional damages if the D acted knowingly and with specific intent that the P relied on the conduct). Can get court costs and reasonable and necessary attorney's fees. |
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What is a consumer?
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entity who seeks or acquires, by purchase or lease, goods or services (can be a business with $25m or less in assets)
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A cnsumer may maintain a cause of action under the DTPA provided that....?
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the goods or services purchased or leased form the basis of the complaint and the D committed the misconduct in connection with the transaction
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What claims can a consumer assert under the DTPA?
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Misrepresentation (laundry list), unconscionability, and breach of warranty
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What are misrepresentation claims based on?
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DTPA's laundry list, a list of 27 acts or practices that are prima facia false, deceptive, and misleading.
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What are the most common laundry list items?
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1. misrepresenting the characteristics, benefits, standard, quality or grad of good
2. failure to disclose (seller must have intent) 3. misrep of legal rights (i.e. misrep regarding right to repossess) |
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Does a misrepresentation have to be in writing?
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No, can be oral, but must be a statement of fact and not an opinion or puffing.
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What must a consumer show regarding the misrepresentation?
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She relied on it to her detriment.
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Is an "as is" clause a valid defense against the DTPA?
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No. Under the laundry list, the 'as is' clause may not be waived or disclaimed and does not affect a consumer's right to bring the DTPA claim.
However, if it is a good, and the UCC breach of warranty is claimed, the 'as is' clause is enforceable against an implied warranty, but not an express warranty. NOTE: no implied warranty for a USED good. |
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2 kinds of implied warranties:
(warranties not based on words or conduct) (applies only to sale of goods under UCC TBCC) |
1. warranty of merchantability - when a merchant sells a good (not used goods though)
2. implied duty of fitness for a particular purpose - aplies to any seller and also applies to used goods - buyer must have a "particular" purpose |
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Does the DTPA create warranties?
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No, a breach of warranty claim must be established independent of the Act.
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Does a misrepresentation have to be in writing?
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No, can be oral, but must be a statement of fact and not an opinion or puffing.
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What must a consumer show regarding the misrepresentation?
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She relied on it to her detriment.
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Is an "as is" clause a valid defense against the DTPA?
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No. Under the laundry list, the 'as is' clause may not be waived or disclaimed and does not affect a consumer's right to bring the DTPA claim.
However, if it is a good, and the UCC breach of warranty is claimed, the 'as is' clause is enforceable against an implied warranty, but not an express warranty. NOTE: no implied warranty for a USED good. |
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2 kinds of implied warranties:
(warranties not based on words or conduct) (applies only to sale of goods under UCC TBCC) |
1. warranty of merchantability - when a merchant sells a good (not used goods though)
2. implied duty of fitness for a particular purpose - aplies to any seller and also applies to used goods - buyer must have a "particular" purpose |
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Does the DTPA create warranties?
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No, a breach of warranty claim must be established independent of the Act.
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What is an express warranty?
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any affirmation of fact or promise made by a seller that relates to the goods and becomes a part of the basis of the bargain
(applies to a bargain and as is clause does not negate it) |
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What damages are available under the DTPA
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1. economic damages
2. If knowingly, damages for mental anguish, and 3x economic damages 3. If intentionally, 3x both economic and meantal anguish damages 4. reasonable attorney's fees (must be in a dollar amount and not a percentage) |
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Define knowingly and intentionally.
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1. actual awareness at the time
2. acted knowingly and had specific intent that the consumer act in reliance on the conduct |
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Noneconomic damages
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Only recoverable under DTPA if knowingly, and includes
mental anguish, pain and suffering, loss of consortium |
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How do you calculate damages?
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cost of repair or difference in value between what the good was worth as represented and what the boat was worth delivered (whichever is greater)
-also include any direct and consequential loss (doctor's visit, towing costs, etc) |
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What is the Fair Debt Collection Practices Act and who does it apply to?
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Federal law that seeks to eliminate abusive debt collection practices by debt collectors. Debt collectors are specifically third-party collectors.
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What is prohibited by the FDCPA?
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-conduct that is harassing, abusive, false, misleading, or unfair.
-calling at an 'inconvenient' time (before 8am and after 9pm -failure to send reuqired validation notice -threatening arrest (or any activity that is contrary to law) -improperly contacting third parties (exception if calling to get location, and in a nonembarassing way) -cannot use false, deceptive, or misleading representations that cannot be legally taken (this conduct is not limited to consumer) |
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What is a validation notice
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-under FDCPA, within 5 days after first communication with the consumer, the debt collector must send the consumer written notcie containing the name of the creditor, the amount of debt, and a statement the consumer has 30 days to dispute the debt
If the consumer disputes the debt, the debt collector must obtain verification of the debt and mail it to the consumer. The debtor collector must cease collection until such time as the debt is verified |
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What is the Texas Debt Collection Act and to whom does it apply?
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Like the FDCPA, designed to protect consumers from the effects of wrongful debt collection activities. Applies to debt collectors and consumers (Individual with a consumer debt--personal, family or household purposes).
Applies to fraudulent, deceptive, and misleading represenatations enumerated in the statute. |
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How is the TDCA different than the FDCPA?
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Conduct not listed in the statute are not actionable, even if false, deceptive, misleading or threatening, AND
TDCA is not limited to third party debt collectors |
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What threatening or coercive conduct is prohibited by the TDCA?
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-using or threatening to use violence or other criminal means to cause harm to a person or property of a person
-accusing falsely or threatening to accuse falsely a person of fraud or any other crim -threatening that the debtor will be arrested for nonpayment of a consumer debt without proper court proceedings -threatening to file a charge, complaint or criminal action against a debtor when the debtor has not violated a crime -threatening to take an action prohibited by law |
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What abusive conduct is prohibited by the TDCA?
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-placing phone calls without disclosing the name of the indiviaul making the call and with the intent to annoy, harass, or threaten a person at the called number
-causing a telephone to ring repeatedly or continuously, or making repeated or continuous telephone calls with the intet to harass a person at the called number |
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How do you establish a debt collection action under the DTPA?
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Must establish consumer status (note, this would not apply to a third party)
-since it is a 'tie-in' statute, any voilation of the TDCA is automatically actionable through the tie-in provisions |
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What other activities does the TCDA prohibit?
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-representing that a consumer debt may be increased by attornye's fees, investigation fees, services fees, etc., if the contract does not authorize it
-representing that a consumer debt will definitely be increased by the addition of attorney's fee if subject to judicial discretion -collecting or attempting to collect interest or a charge, fee or expense incidental to the obligation unless expressly authorized |
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What remedies are available under the TDCA?
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-injunctive relief in the form of a cease and desist order, OR actual damages (economic damages as well as damages for pain and suffering and mental anguish)
-attorney's fees NOTE: mental anguish damages must be shown to have a relatively high degree of mental pain and distress that causes a substantial disruption in daily routine NOTE: there is also a common law tort claim in Texas for wrongful debt collection (actual and exemplery damages) NOTE: only consumer has these remedies and not consumer's family member who took phone calls and had damages |
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What are the remedies under the FDCPA?
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-actual damages
-court may award additional damages up to $1000 -reasonable attorney's fees NOTE: even the consumer's family member/friend who was affected can collect damages |
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Actual damages
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All damages recoverable under common law, including economic loss, and mental anguish (still must show knowing to get mental anguish damages)
-this is the damages you get under the Texas Insurance Code, Debt Collections Acts, and probably others |
